On 18 February 2002, the President of the Court of First Instance of Cotonou authorised the Société FRET-AM SARL (FRET-AM) to arrest the vessel LCT Mahotes, belonging to the Compagnie Nationale de Navigation Intérieurs (CNI), on the basis of a debt owed to FRET-AM by CNI. On 1 March 2002, CNI sued FRET-AM before the summary Judge of the Court of First Instance of Cotonou, alleging that the arrest of its vessel was ordered in violation of a jurisdiction clause inserted in the maritime contract binding the parties, and asking that the arrest order be retracted, and the release of its vessel be ordered. The summary Judge granted CNI's requests in a judgment dated 13 March 2002. On appeal by FRET-AM, the Cotonou Court of Appeal rendered a confirmatory judgment on 29 July 2004. FRET-AM then appealed to the Supreme Court.

Held: Appeal dismissed.

The judgment under appeal is criticised for having rejected a request for disqualification of Judge Honoré Akpomey, who had heard of the case at first instance and who was once again part of the Court of Appeal, whereas art 65 of the Law of 27 August 2002 on judicial organisation in the Republic of Benin provides, in the interest of the litigant and for the good administration of justice, a rule of public order according to which no judge cannot hear the same case both at first instance and on appeal without violating the general principle of the double degree of jurisdiction. However, an examination of the documents in the file does not reveal that a request for the disqualification of a judge was made. It follows that FRET-AM has not proved that a regular request for recusal was presented before the Judges of appeal and that they rejected it. It follows that this plea is inadmissible.

The judgment under appeal is also criticised for its lack of response to FRET-AM's submission as to whether the jurisdiction clause inserted in the maritime contract concluded with CNI was in conformity with the Brussels [Arrest] Convention [1952], or if the Brussels Convention had enacted supplementary or mandatory provisions. According to FRET-AM's submission, the parties cannot derogate from the rules provided for by the Brussels Convention, and the clauses conferring jurisdiction aiming at protecting the carrier are null and void.

But the judgment under appeal held that although, according to the Brussels Convention invoked, '[a] ship flying the flag of one of the Contracting States may be arrested in the jurisdiction of any of the Contracting States in respect of any maritime claim' (art 2), this is an option which is given to the contracting parties, an option from which they can derogate to have contractual clauses drawn up which they think are more suited to their contract. In the present case, CNI and FRET-AM had freely agreed as follows: 'In the event of non-observance of the provisions of this contract, the two parties undertake to settle this dispute amicably. In the event of a duly noted disagreement, the injured party must take the matter to the courts of Libreville, the place of the shipowner's headquarters, which alone are competent to take up the case.' The parties, by inserting such a clause in their contract, have only made use of the option given to them in the Brussels Convention to submit to the Gabonese courts the disputes which would result from the execution of their contract. It follows that the clause is not unlawful or null and void. By these statements, the Judges of the Court of Appeal responded to FRET-AM's submissions on this point. This plea is unfounded.

The Court of Appeal noted that the clause conferring jurisdiction on the Gabonese courts, inserted in the maritime contract and binding on the parties, made the Beninese courts incompetent to hear the request for authorisation to arrest the vessel presented by FRET-AM. The Court of Appeal legally justified its decision.